Cosgrove v. Sunderland

In a proceeding, inter alia, to validate the designation of Joseph D. Cosgrove as a candidate in a primary election to be held on September 15, 1998, for the nomination of the Right to Life Party as its candidate for the public office of Member of the New York State Senate for the 87th Assembly District, Dennis R. Gallego, Sr., appeals from a judgment of the Supreme Court, Westchester County (Colabella, J.), dated August 12, 1998, which, after a hearing, granted the petition.

Ordered that the judgment is reversed, on the law, the petition is denied, and the proceeding is dismissed, without costs or disbursements.

The failure to timely file a certificate of authorization, which was required for a valid designating petition (see, Election Law § 6-120 [3]), constituted a “fatal defect” under Election Law § 1-106 (2) (see, Matter of Plunkett v Mahoney, 76 NY2d 848). The only certificate filed herein was a “Certificate of Substitution — Filling of Vacancy Caused by Declination” under Election Law § 6-148, and not a certificate of authorization as mandated by Election Law § 6-120.

Moreover, in light of the mandatory language of Election Law § 6-120, the Supreme Court erred in granting the petitioner leave to file a certificate of authorization nunc pro tunc. Mangano, P. J., Thompson, Pizzuto, Krausman and Gold-stein, JJ., concur.